Citation Nr: 1534480
Decision Date: 08/12/15 Archive Date: 08/20/15
DOCKET NO. 15-10 195 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to an educational assistance benefit level higher than 40 percent under Chapter 33, Title 38, Unites States Code (Post-9/11 GI Bill).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A. Larson, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from June 2002 to October 2007. Prior to this, he attended the United States Military Academy from June 1998 to June 2002.
This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that determined that the Veteran was eligible for 40 percent of the maximum benefits payable under the Post-9/11 GI Bill.
This award of 40 percent came after an error was discovered in the Veteran's previous award of 100 percent under the program that was in place since July 2011. The RO initially indicated that the Veteran had to repay VA $44,104.55 as a result of the overpayments he had received. However, in a December 2013 decision, the RO determined that the overpayment was due solely to an administrative error on VA's part and therefore, this debt was waived.
The Veteran testified at a June 2015 Board hearing in Cleveland, Ohio (Travel Board). The hearing transcript has been associated with the claims file.
FINDINGS OF FACT
1. The Veteran had active service from June 2002 to October 2007; prior to that he attended the United States Military Academy beginning in June 1998 and graduating in June 2002.
2. The Veteran's active service from June 2002 to June 2007 was completed to satisfy service obligation for his attendance at the United States Military Academy and does not qualify as active duty service for the purpose of administration and payment of benefits under Chapter 33.
3. His remaining active duty service, up until discharge in October 2007, does qualify as active duty service for the purpose of administration and payment of benefits under Chapter 33; this amounted to 123 days.
CONCLUSION OF LAW
The criteria for an educational assistance benefit level higher than 40 percent under the Post-9/11 GI Bill are not met. 38 U.S.C.A. §§ 3301-24 (West 2014); 38 C.F.R. §§ 21.9505, 21.9520 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In this case, VCAA notice is not required because the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000). The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-04, 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the appellant in substantiating the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A; Dela Cruz, 15 Vet. App. at 143.
Educational Assistance Benefits under the Post-9/11 GI Bill
Even after the above mentioned waiver of the prior debt, the Veteran appealed his now lower assignment of 40 percent of maximum benefits payable under the Post-9/11 GI Bill. He seeks payment for the debt he incurred in finishing his studies that was necessitated by the newly instated 40 percent benefit level. He claims that the original assignment-in-error of 100 percent of benefits payable under the bill influenced his choice of school. Additionally, he has variously stated that the continuance of this assignment-in-error for multiple academic quarters advanced him to a point where he felt he had to finish school and thus, incur the debt.
The provisions of the Congressional action to establish educational benefits commonly known as the Post-9/11 GI Bill are codified at 38 U.S.C.A. §§ 3301 -3324 (West 2014) with the implementing regulations found at 38 C.F.R. §§ 21.9500-21 .9770 (2014). VA promulgated provisions for eligibility for this benefit based on certain qualifying periods and types of active duty service. See 38 U.S.C.A. §§ 3301 -24; 38 C.F.R. § 21.9520. An individual may establish eligibility for basic educational assistance under Chapter 33 by showing that he or she had active duty service after September 10, 2001, and, in pertinent part, serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, continues on active duty or is discharged from service with an honorable discharge. 38 C.F.R. § 21.9520 (a).
Under the provisions governing the administration and payment of educational under the Post-9/11 GI Bill, the following definitions apply: "Active duty" means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. "Active duty" does not include, among other types of service, any period of service during which the individual served as a cadet or midshipmen at one of the service academies, or a period of service required by an officer pursuant to an agreement under 10 U.S.C. 4348. 38 U.S.C.A. § 3301; 38 C.F.R. § 21.9505.
The record shows that the Veteran entered the United States Military Academy in June 1998 and graduated in June 2002. A DD-214 form reflects that immediately following graduation, the Veteran had five years and four months of active duty service through October 2007 when he was honorably discharged. The reason given for his separation was "miscellaneous/general reasons."
As a cadet at the United States Military Academy, the Veteran was under a program of educational assistance pursuant to 10 U.S.C.A. § 4348 (a)(2)(B), which states that each cadet shall sign an agreement whereby upon graduation from the academy he will serve on active duty for at least five years immediately after such appointment. The Veteran completed this agreement by serving five years and four months on active duty.
As previously noted regarding definitions in 38 U.S.C.A. § 3301 and 38 C.F.R. § 21.9505, "active duty" does not include a period of service required by an officer pursuant to an agreement under 10 U.S.C.A. § 4348. Moreover, provisions at 38 U.S.C.A. § 3311(d) also address eligibility requirements under 38 U.S.C. Chapter 33, specifically prohibiting treatment of certain service as a period of active duty. As applicable here, a period of service on active duty as an officer pursuant to an agreement under 10 U.S.C.A. § 4348 shall not be considered as part of the period of active duty on which an individual's entitlement to education assistance under this chapter is based. 38 U.S.C.A. § 3311(d).
Therefore, only the Veteran's period of active duty service after his five year agreement under 10 U.S.C.A. § 4348 ended shall count for assignment of benefits payable under the Post-9/11 GI Bill. The record indicates he served four months (123 days) following the end of his five year period in June 2007. Pursuant to 38 U.S.C. § 3311 and 38 C.F.R. § 21.9640(a), the Veteran's 123 days of eligible service qualifies him for 40 percent of the maximum amount payable for assistance under the Post-9/11 GI Bill.
The Board acknowledges that VA errantly certified the Veteran's eligibility for 100 percent of Post-9/11 GI Bill benefits. To the extent that the Veteran may be arguing that he detrimentally relied on this erroneous issuance of benefits, such that he is owed for the debt he had to incur to finish school, there is no legal eligibility that exists for the 100 percent benefit level based on the Veteran's service dates. VA is charged with administering the law as it is written and, as noted above, governing legal criteria specifically exclude an award of this maximum amount of benefits payable absent the required amount of active duty service under 38 U.S.C. § 3301 and 38 C.F.R. § 21.9505. As articulated above, the Veteran's period of attendance at the United States Military Academy and his subsequent period of active service required by such attendance are specifically excluded from creditable active duty service under the regulations governing eligibility for benefits under the Post-9/11 GI Bill, leaving him with four months of eligible active duty service.
The Board is sympathetic to the Veteran's position, in that he acted upon incorrect information when he was initially provided the maximum amount of benefits payable. However, it is well established that the Board cannot grant educational assistance benefits based upon the failure of U.S. Government employees to provide accurate information regarding eligibility. See, e.g., Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (the remedy for breach of any obligation on VA's part to provide veterans with accurate information pertaining to eligibility for Chapter 30 benefits "cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met"); see also McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[P]ayment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits."). The Board has no authority to disregard the specific requirements enacted by Congress, and "neither VA nor the Court can extend [Chapter 33] benefits out of sympathy for a particular veteran." Harvey, 6 Vet. App. at 422 (quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992)).
While sympathetic to the Veteran, the Board is nonetheless bound by the law and has no authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104. Equitable relief is solely within the discretion of the Secretary of Veterans Affairs, and is not within the jurisdiction of the Board. See McCay v. Brown, 8 Vet. App. 378 (1995); Harvey v. Brown, 6 Vet. App. 416 (1994); 38 C.F.R. § 2.7.
ORDER
Entitlement to an educational assistance benefit level higher than 40 percent under the Post-9/11 GI Bill is denied.
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K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs